KDL BIOTECH LTD., RAIGAD V. ACIT CENT CIR. 30, MUMBAI

ITA 2286/MUM/2016

• Counselvise Citation: [2018] 125 COUNSELVISE.COM (IT) 3304 (ITAT-MUMBAI)
• Duration Of Justice: 2 year(s) 3 month(s) 25 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 23-08-2018
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: Not Allotted
• Assessment Year: 2010-2011
• Appeal Filed On: 28-04-2016
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: ABHIJIT PATANKAR
• Keywords: Capital asset converted into stock in trade
• Section: 45(2)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL F BENCH, MUMBAI BEFORE SHRI SAKTIJIT DEY , JUDICIAL MEMBER AND SHRI M ANOJ KUMAR AGGARWAL, ACCOUNTANT MEMBER ITA NO. 2286 / MUM/2016 ( ASSESSMENT YEAR : 20 10 11 ) KDL BIOTECH LTD. VILLAGE SAVROLI, TALUKA KHALAPUR DIST. RAIGAD, KHAPOLI RAIGAD 410 202 PAN AAACK5958L . APPELLANT V/S ASSTT. COMMISSIONER OF INCOME TAX CENTRAL CIRCLE 30, MUMBAI . RESPONDENT ITA NO.3552/MUM/2016 ( ASSESSMENT YEAR :2011 12 ) KDL BIOTECH LTD. VILLAGE SAVROLI, TALUKA KHALAPUR DIST. RAIGAD, KHAPOLI RAIGAD 410 202 PAN AAACK5958L . APPELLANT V/S ASSTT. COMMISSIONER OF INCOME TAX CENTRAL CIRCLE 30, MUMBAI . RESPONDENT ITA NO.2285/MUM/2016 ( ASSESSMENT YEAR :2008 09 ) KDL BIOTECH LTD. VILLAGE SAVROLI, TALUKA KHALAPUR DIST. RAIGAD, KHAPOLI RAIGAD 410 202 PAN AAACK5958L . APPELLANT V/S ASSTT. COMMISSIONER OF INCOME TAX CENTRAL CIRCLE 30, MUMBAI . RESPONDENT ASSESSEE BY : NONE REVENUE BY : SHRI ABHIJIT PATANKAR DATE OF HEARING 0 7 .0 8 .2018 DATE OF ORDER 23.08. 2 0 18 2 KDL BIOTECH LTD. O R D E R PER SAKTIJIT DEY, J.M. A FORESAID APPEALS BY THE SAME ASSESSEE ARE AGAINST THREE SEPARATE ORDERS PASSED BY THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS) 51, MUMBAI, FOR THE ASSESSMENT YEARS 2008 09, 2010 11 AND 2011 12. 2 . WHEN THESE APPEALS WERE CALLED FOR HEARING, NO ONE WAS PRESENT ON BEHALF OF THE ASSESSEE. EVEN , THERE WAS NO APPLICATION BY THE ASSESSEE SEEKING ADJOURNMENT. AS SEEN FROM THE RECORD, THE LEARNED AUTHORISED REPRESENTATIVE WHO WAS APPEARING FOR THE ASSESSEE EARLIER HAS BROUGHT TO THE NOTICE OF THE BENCH THAT THE COMPANY IS UNDER LIQUIDATION AND OFFICIAL LIQUIDATOR HAS BEEN APPOINTED TO I NITIATE THE PROCESS FOR WINDING UP OF THE COMPANY. ON THE BASIS OF THE AFORESAID INFORMATION, THOUGH , HEARING NOTICES WERE SENT TO THE OFFICIAL LIQUIDATOR PER REGISTERED POST BY THE REGISTRY , AS WELL AS , THROUGH THE OFFICE OF THE LEARNED DEPARTMENTAL REPRESENTATIVE, HOWEVER, THERE HAVE BEEN NO RESPONSE IN SPITE OF SERVICE OF NOTICES AS EVIDENT FROM THE SERVICE RETURNS KEPT IN THE APPE AL FOLDER RELATING TO ITA NO.2285/ MUM./2016. IN THE AFORESAID CIRCUMSTANCES, WE HAVE NO OTHER OPTION BUT TO PROCEED TO DISPOSE OFF THESE APPEALS EX PARTE QUA THE ASSESSEE AFTER HEARING THE LEARNED DEPARTMENTAL REPRESENTATIVE. 3 KDL BIOTECH LTD. 3 . AS COULD BE SEEN, THE MEMORA NDUM OF APPEAL IN FORM NO.36, FILED BY THE ASSESSEE BEFORE THE TRIBUNAL WAS NOT SIGNED AND VERIFIED BY THE MANAGING DIRECTOR. THEREFORE, THE REGISTRY TREATING THE APP EALS AS DEFECTIVE ISSUED NOTICES TO THE ASSESSEE TO RECTIFY THE DEFECTS. HOWEVER, TILL THE DATE OF HEARING OF APPEALS, NO STEPS HAVE BEEN TAKEN TO RECTIFY THE DEFECTS POINTED OUT BY THE REGISTRY. AS PER RULE 47(1) R/W RULE 45(2) OF THE INCOME TAX RULES, 1962, THE MEMORANDUM OF APPEAL IN FORM NO.36 HAS TO BE SIGNED AND VERIFIED BY THE PERSON WH O IS AUTHORIZED TO FILE THE RETURN OF INCOME AS PER SECTION 140 OF THE INCOME TAX ACT, 1961 (FOR SHORT THE ACT ). IN CASE OF A COMPANY, AS PER SECTION 140(C) OF THE ACT, THE VERIFICATION HAS TO BE SIGNED BY THE MANAGING DIRECTOR OF THE COMPANY OR IN A CAS E WHERE THE MANAGING DIRECTOR IS NOT AVAILABLE OR THERE IS NO MANAGING DIRECTOR THEN BY ANY ONE OF THE DIRECTORS. IN THE PRESENT CASE, THE MEMORANDUM OF APPEAL IN FORM NO.36 HA S NOT BEEN SIGNED BY THE MANAGING DIRECTOR. THE ASSESSEE HAS ALSO NOT EXPLAINED WHY THE PROVISIONS OF RULE 47(1) AND 140(C) HAVE NOT BEEN COMPLIED WITH. SINCE, THE DEFECT POINTED OUT BY THE REGISTRY HAS NOT BEEN REMOVED , THE APPEALS FILED BY THE ASSESSEE ARE TO BE TREATED AS DEFECTIVE APPEALS, HENCE, CANNOT BE ADMITTED. IN VIEW OF THE AFORESAID, WE DISMISS THE APPEALS IN LIMI NE WITHOUT ADMITTING THEM . HOWEVER, LIBERTY IS GIVEN TO THE ASSESSEE TO SEEK RECALL OF THIS ORDER SUBJECT TO REMOVAL OF THE DEFECTS POINTED OUT BY THE REGISTRY. 4 KDL BIOTECH LTD. 4 . IN THE RESULT, APPEALS ARE DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON 23.08.2018 SD/ - MANOJ KUMAR AGGARWAL ACCOUNTANT MEMBER SD/ - SAKTIJIT DEY JUDICIAL MEMBER MUMBAI, DATED: 23.08.2018 COPY OF THE ORDER FORWARDED TO : ( 1 ) THE ASSESSEE; ( 2 ) THE REVENUE; ( 3 ) THE CIT(A); ( 4 ) THE CIT, MUMBAI CITY CONCERNED; ( 5 ) THE DR, ITAT, MUMBAI; ( 6 ) GUARD FILE . TRUE COPY BY ORDER PRADEEP J. CHOWDHURY SR. PRIVATE SECRETARY (SR. PRIVATE SECRETARY) ITAT, MUMBAI